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On Friday, Target agreed to pay $3.74 million and review its policies for screening job applicants to settle Carnella Times et al. v. Target Corp., a class action in the Southern District of New York challenging the company’s use of background checks. The suit claimed that Target’s use of criminal background checks violated Title VII by disproportionally excluding Black and Hispanic applicants from obtaining employment.
Data demonstrates that certain minority populations—principally, Black and Hispanic males—are arrested and convicted at higher rates than their representation in society. The EEOC’s Enforcement Guidance on the issue states that an employer’s facially neutral policy or practice excluding applicants from employment that adversely affects a disproportionate number of members of a protected class, without a substantial business justification may give rise to a disparate impact discrimination claim under Title VII.
Target has been praised over recent years as being one of the largest national employers to take a proactive approach to “Ban the Box,” a legislative movement designed to provide greater employment opportunities to job applicants with criminal histories by delaying inquiries into an employee’s criminal history until later in the hiring process. In 2013 Target removed questions about applicant criminal history from all of its employment applications.
However, it seems that simply removing criminal history inquiries from its job applications was not enough to insulate Target’s hiring process from a disparate impact claim. The complaint alleged that after Target extends a conditional offer of employment to an applicant a third-party vendor conducts a criminal background check on the applicant. The results of the criminal background check are then compared to Target’s hiring guidelines, which screen out applicants who have been convicted of certain crimes involving violence, theft, or controlled substances in the seven years prior to the application. Although Target followed several best practices, such as conducting a background check after a conditional offer of employment and utilizing a neutral third-party vendor, the Complaint alleged that Target’s hiring guidelines are not job-related or consistent with business necessity for hourly, entry level jobs such as food service workers, stockers, cashiers, and cart attendants.
Under the settlement agreement, Target will provide class members with hourly, entry level jobs at Target stores through a priority hiring process. Class members not eligible for priority hiring may be eligible to receive a monetary award in lieu of employment. Second, Target will engage independent consultants to revise and validate Target’s hiring guidelines to remedy the hiring practices at issue in the suit. Finally, Target also agreed to make a financial contribution to nonprofits that provide re-entry support to individuals with criminal history records.
Target’s settlement illustrates that removing criminal history inquiries from applications may not be enough to protect employers from litigation. The settlement is a reminder to all employers to reevaluate hiring practices to stay in line with the EEOC’s guidance. Although the EEOC does not prohibit consideration of criminal history, employers who have a policy that excludes applicants based on criminal history should evaluate whether the exclusion is appropriate for all job positions. According to the EEOC, in order for an employer to demonstrate that its criminal history exclusion is job related and consistent with business necessity, the employer must “show that the policy operates to effectively link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position.”
Accordingly, employers should look at each position’s job duties, work environment, and potential exposure to certain types of customers to determine whether the applicant’s criminal history is really an issue. A simple evaluation of job positions can ensure compliance with Title VII and EEOC guidance and keep the focus on hiring good employees, not fighting unnecessary litigation.